In May 2019, Narita Bahra QC revealed significant failures of one of the CPS’s key expert witnesses in the multi-million pound fraud case R v Sulley. Following Narita’s identification of various disclosure failings, the ‘expert’ Andrew Ager admitted that he had no academic qualifications, had received no training nor had he attended any course on the carbon credit trade. He was discredited as by the Judge as “wholly misleading”. Following this landmark case, the CPS have opted to update the ACPO Guidance. This guidance document is important and useful, and should be read by all practitioners before instructing or challenging expert witnesses. The original Guidance Booklet for Experts was published by the Crown Prosecution Service and the Association of Chief Police Officers in May 2010 (‘the ACPO Guidance’) and endorsed by the then Director of Public Prosecutions Keir Starmer QC. In October 2015, the most recent Criminal Procedure Rules (‘CrimPR’) were introduced. The importance of this guidance has become key following the collapse of R v Sulley.
The guidance’s focus still remains on emphasising the expert’s duty to retain, record and reveal. It also explains, in stark terms, the serious consequences of failing to comply with those obligations.
The principles of retain, record and reveal are summarised in the ACPO Guidance as follows:
It has always been essential that the Criminal Procedure Rules, Part 19 are read in conjunction with the Practice Direction at CPD V Evidence 19A to C. It should be noted that the recent amendment to the CrimPR was on 1 April 2019, when an obligation was imposed, via the insertion of para 19A.7 of the Practice Direction, on a party introducing expert evidence to ascertain and disclose information that has the potential to undermine the reliability or credibility of their expert evidence. The guidance makes it clear that the type of information contemplated includes, amongst other things, previous adverse judicial comment and a lack of accreditation.
The guidance now affirms this fact.
1.2 The word disclosure is often used in criminal proceedings to refer to the disclosure of unused material but experts in criminal proceedings have a number of different obligations as to disclosure.
1.3 Defence and prosecution experts are subject to the obligations contained in the Criminal Procedure Rules both in part 3 as to case management and part 19 as to expert evidence. Further guidance for all experts is contained in the 2015 Criminal Practice Direction that expands upon the Criminal Procedure Rules. These provisions oblige all experts to disclose certain information about themselves and their work.
1.4 Prosecution experts have further obligations as to the disclosure of unused material.
The slim chapter within the guidance which had been previously been titled “Disclosure obligations under the criminal law” has now been separated into two chapters titled “the disclosure obligations of all expert witnesses” (Chapter 3) and “the disclosure obligations of prosecution experts” (Chapter 4).
The guidance helpfully acknowledges that all expert witnesses are subject to a number of obligations to disclose information and material when preparing statements or reports for use in criminal proceedings and that it is the responsibility of those providing expert evidence to ensure they have an accurate understanding of the requirements of the criminal justice system and to meet those requirements. The guidance refers expert witnesses to The Forensic Science Regulations.
The guidance reminds each expert to refer to the Criminal Procedure Rules (CrimPR) and to keep firmly at the forefront of their mind the Criminal Practice Directions Division V, which make further provision as to expert evidence supplementing and expanding upon some of the provisions of the Criminal Procedure Rules. Full details can be found here.
The guidance draws attention to the fact that the CPD V 19A.7 provides examples of information, namely adverse findings, failures or conflicts on the part of the expert, that should be disclosed by all experts under CrimPR 19.2(3)(d).
Chapter 4 specifically recognises that prosecution expert witnesses are subject to further obligations as to unused material and that although the material may not be used as evidence, it is important that for the purposes of disclosure this material is recorded, retained and where necessary, revealed to the defence.
It confirms that three key obligations arise for the prosecution expert; to retain, to record, and to reveal and that the understanding of these obligations is the key to adequately fulfilling disclosure obligations. The relevant steps are to:
4.5 provide a reminder that “the CPIA provides that the prosecution must disclose to the accused any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused (the disclosure test)”.
The updated CPS guidance is helpful in that proformas of all the aforementioned are attached as appendices.